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Beware the Copyright Troll

Have you ever heard of Righthaven LLC? I hope not, because if you have it may have been on the wrong end of a lawsuit. Righthaven is (or was) the foremost copyright troll in the United States. It seeks to make money off enforcing copyrights of newspapers and magazines, despite having had nothing to do with developing the material.

Here is the business model. You've probably seen it, a few paragraphs of a newspaper article quoted in a blog or another website. Maybe you read it or maybe you skipped right over it. The people behind Righthaven thought, hey, somebody could sue these people, and we should do it for them! The strategy was successful at first. Righthaven entered into agreements with media outlets in Las Vegas, Denver, San Jose, and Little Rock, pursuant to which they sued hundreds of defendants. Under United States law, a copyright owner is entitled to statutory damages up to $30,000, or $150,000 for willful violations. Righthaven would demand large sums and then settle for relatively low amounts as the defendants didn't have the wherewithal to mount a full defense.

Righthaven's troubles began when parties stopped settling and began to defend the suits, and when organizations such as the Electionic Frontier Foundation lent their resources and expertise to defendants. First, judges began asking Righthaven, "wait, who are you?" Essentially, the judges accused Righthaven of manufacturing standing, which, of course it did. Standing reflects the right to sue based on connection to the harm and personal legal interest, and Righthaven had zero connection to the alleged copyrighted material, other than agreeing with the copyright owner to sue on the owner's behalf and split the proceeds. The judges did not look favorably on this arrangement.

Second, defendants who didn't settle were able to successfully argue that their incorporation of the material was "fair use" - people are allowed to reproduce copyrighted material, subject to a four-factor test, for purposes such as criticism, comment, reporting, and scholarship.

Then the real trouble for Righthaven began. Copyright law allows the prevailing party to seek attorneys' fees from the losing party, so when Righthaven started losing its lawsuits, it started owing money to angry people. Righthaven didn't pay up, and a couple of weeks ago one defendant moved to seize all of Righthaven's assets, a move which would in effect dismantle the company.

So be careful out there writers and bloggers, but look for help if a big bad copyright troll emerges from the litigation factory mountains wielding a lawsuit cudgel.

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About the Author

Eldad Malamuth has degrees from the University of Michigan and the University of Chicago Law School, and he is a mere thesis away from earning his MFA in creative writing at Northwestern University. He has argued multiple cases in the Seventh Circuit Court of Appeals, the Illinois Supreme Court and Appellate Courts, and state and federal trial courts.